Excerpted From: Jeffrey C. Sun, Counterpoint: Ostensibly Removing College Race-Conscious Admissions Policies: Opposing the Majority Opinion and its Defeasible Reasoning, 413 West's Education Law Reporter 19 (August 31, 2023) (70 Footnotes) (Full Document Requested)

JeffreyCSunOn June 29, 2023, the Supreme Court struck down two college race-conscious admissions policies in companion cases that incorporated holistic, individualized reviews, including race as one of many factors considered. Drawing on an Equal Protection analysis, the Court, in a 6-3 decision, ruled that the admissions policies at Harvard and the University of North Carolina at Chapel Hill (Harvard College) failed to pass constitutional muster under the strict scrutiny standard. According to the Court, the policies were insufficiently measurable to justify the use of race, created a "negative" effect to admissions by race, functioned as a stereotype application, and lacked a logical endpoint.

This paper thus presents how the Supreme Court wrongly decided Harvard College by overturning over four decades of precedent, stripping away more than six decades of academic freedom, and potentially reducing national security to designated military academies. Instead, the Court imparted its defeasible rationale of racial indifference masked as an Equal Protection justification which will inevitably have deleterious effects on higher education as a social and economic institution.

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The Supreme Court, through its defeasible reasoning of racial indifference, changed college admissions by overturning more than 40 years of precedent, stripped higher education of its academic freedom, and placed a false sense of caring for national security. Further, Harvard College, which selectively examined precedent, discounted data, and ignored our societal state on racism, will operate under the ruse of colorblindness, but in reality, it will continue to undermine education, dismiss health disparities as a fiction, create stratified wealth, and forsake community development. In other words, the impact of this decision is real and severe.

There is no doubt that American colleges and universities, which are resilient and responsive, will make changes to their policies and practices by finding alternatives. However, institutional officials will face reality; none of these alternatives will be as useful as race-conscious admissions to bring the compelling interest of educational benefits associated with diversity.

Campus officials will need to face the disparate impacts associated with replicated privilege from one generation to the next with legacy admissions and other privileged classes. The majority relied on SFFA's analyses and its model which suggested eliminating "tips" for certain groups, notably the advantage gained for the children of donors, alumni, and faculty within the Harvard admissions process. That category generates disproportionate special admissions for White applicants, so it reflects an open opportunity for litigation, which will no doubt continue. But in the end, what observers have learned about constitutionality from this Court's judgments during this term is that pigs have greater protections than people of color.

Jeffrey C. Sun is Professor of Higher Education and Law, Distinguished University Scholar, and Associate Dean for Innovation and Strategic Partnerships at the University of Louisville. He is also Counsel at Manley Burke, LLP.